Allahabad High Court
State Of U.P. And 4 Others vs Gorakh Nath Pandey And 15 Others on 21 December, 2017
Author: Arun Tandon
Bench: Arun Tandon, Ritu Raj Awasthi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 15th September, 2017 Delivered on 21st December, 2017. Court No. - 10 Case :- SPECIAL APPEAL DEFECTIVE No. - 773 of 2016 Appellant :- State Of U.P. And 4 Others Respondent :- Gorakh Nath Pandey And 15 Others Counsel for Appellant :- Rama Nand Pandey,S.C. Counsel for Respondent :- Siddharth Khare With Case :- SPECIAL APPEAL DEFECTIVE No. - 319 of 2017 Appellant :- State Of U.P. And 2 Others Respondent :- Krishna Kumari And Another Counsel for Appellant :- Yogendra Kumar Srivastava,S.C. Counsel for Respondent :- Angira Prasad,Namit Kumar Sharma With Case :- SPECIAL APPEAL DEFECTIVE No. - 320 of 2017 Appellant :- State Of U.P. And 2 Others Respondent :- Mohammad Naseem And 6 Others Counsel for Appellant :- Yogendra Kumar Srivastava,S.C. Counsel for Respondent :- Angira Prasad,Namit Kumar Sharma With Case :- SPECIAL APPEAL DEFECTIVE No. - 321 of 2017 Appellant :- State Of U.P. & 2 Others Respondent :- Raghunath Deo & 2 Others Counsel for Appellant :- Yogendra Kumar Srivastava,S.C. Counsel for Respondent :- Angira Prasad,Namit Kumar Sharma Hon'ble Arun Tandon,J.
Hon'ble Ritu Raj Awasthi,J.
(Delivered by Arun Tandon, J.) Heard Sri Raghvendra Singh, learned Advocate General State of U.P. assisted by Sri Yogendra Kumar Srivastava, Advocate on behalf of the State-appellants and Sri Angira Prasad and Namit Kumar Sharma, Advocates on behalf of the respondents in all these appeals.
These intra-court appeals filed by the State of Uttar Pradesh raise common question of law and have therefore, been clubbed together.
Delay in filing of all these appeals has been explained to the satisfaction of the Court. Delay is condoned. Delay condonation applications are allowed. Let all these appeals be treated to be within time.
Special Appeal Defective No. 773 of 2016 is being treated as the leading case and the facts stated herein are with reference to the said appeal.
Gorakh Nath Pandey and 15 others filed Writ-A No. 61107 of 2013 for quashing of the order of the General Manager, District industries Centre, Sonebhadra served on 25th September, 2013 with a further prayer to command the State-authorities to provide pension and other retiral dues to the petitioners.
All the petitioners were appointed on various dates in U.P. Government Cement Factory Churk, Mirzapur between 1959 to 1969.
It is not in dispute that all these petitioners answered the description of industrial employees/workmen within the meaning to be assigned for the purpose under the Industrial Employment (Standing Orders) Act, 1946 (hereinafter referred to as the "Act, 1946") and the rules framed thereunder. The conditions of their employment were governed by the Standing Orders applicable to the U.P. Government Cement Factory Churk, Mirzapur (hereinafter referred to as the "Factory").
Petitioners were sent on deputation to the U.P. Government Cement Corporation Ltd. (hereinafter referred to as the "Corporation") on 1st April, 1972, which was extended from time to time and finally on 1st April, 1981 they were absorbed as the employees of the Corporation. Petitioners attained the age of superannuation between 1994 to 2004.
The cement corporation was declared a sick Industrial Undertaking under the provisions of Sick Industrial Companies (Special Provisions) Act, 1985. The Corporation was directed to be wound up under orders of the Company Court dated 8th December, 1999 on the recommendation of the Board of Industrial and Financial Reconstruction. Consequently an Official Liquidator was appointed to settle the claims/dues on the Corporation. The existing employees were directed to be absorbed in other department of the State of Uttar Pradesh under the provisions of U.P. Absorption of Retrenched Employees Rules, 1991.
Petitioners on attaining the age of superannuation claimed that they were entitled to pension like any other employees of the U.P./U.P. Government Cement Factory Churk, Mirzapur, who had since been absorbed in the U.P. Government Cement Corporation Ltd. It was claimed that they were government servants and were entitled to pensionery benefits under Civil Service Regulations.
The history of the litigation in that regard including the orders passed by the High Court and the Officers of the State Government from time to time have already been noticed in the judgment of the learned Single Judge giving rise to the present intra-court appeal, which need not be repeated by us.
Suffice is to record that the General Manager, District Industries Centre vide order dated 12th March, 2013 rejected the claim of the petitioners for grant of pensionery benefits and other retiral dues on the ground that the petitioners did not answer the description of government servant within the meaning of Regulation 361 of the Civil Service Regulations and consequently there were not entitled to pensionery benefits. It is against this order of the General Manager that Writ-A No. 61107 of 2013 had been filed by Gorakh Nath Pandey and 15 others.
On behalf of the petitioners, it was contended that they were regular workers, who had been appointed on the posts existing on the regular strength of the Factory. The Factory was owned by the State Government and therefore, their employment was under the State Government. Their salary was also paid by the State Government. Reference was made to the order dated 2nd August, 2005 issued by the Commissioner and Director of Industries, U.P., for payment of pensionery benefits to similarly situate employees of the cement factory absorbed in the Corporation at the time when it was managed by the Industries Department. It was specifically highlighted that other superior officers and employees similarly appointed in the Factory at Churk and who had been absorbed in the Corporation have been provided pension. It was therefore, contended that there has been hostile discrimination between the petitioners and other such similar situate employees.
Writ petition was opposed by the State of Uttar Pradesh and it was contended that the Government Order dated 2nd August, 2005 specifically clarified that all such employees of Factory at Churk, who were government servant and had been subsequently absorbed in the Corporation w.e.f. 1st April, 1981 were entitled to pension and other retiral dues and the services rendered by such employees prior to their absorption in the Corporation while working in the Factory at Churk were liable to be included for determination of qualifying service for computation of pension. But this Government Order according to the learned Standing Counsel had no application in respect of the employees like the writ petitioners, who were covered by the Standing Orders applicable to the Factory at Churk.
Learned Single Judge after taking into consideration the judgment of the High Court in the case of Suresh Chandra versus State of U.P. & Others reported in (2014) 7 ADJ 721 was pleased to allow the writ petition vide judgment and order dated 12th April, 2016. It has been held that the petitioners were government servant within the meaning of Regulation 361 of the Civil Service Regulation. They were entitled to pensionary and other retiral benefits. It was also held that once the State Government itself has decided to accord pensionery benefit to similarly situate employees of Factory at Churk like the petitioners, any action to the contrary qua the petitioners would be per se discriminatory and unsustainable.
State of U.P. not being satisfied with the judgment and order of the learned Single Judge has filed this intra-court appeal.
Learned Advocate General of the State of Uttar Pradesh, Sri Raghvendra Singh challenges the correctness of the conclusions so drawn by the learned Single Judge. He would contend that the principle issue which requires consideration is as to whether the employees/workmen appointed in government cement factory, whose service conditions are governed by the Standing Orders certified under the Act, 1946 would be entitled to the benefits of pension under Civil Service Regulations or not.
He would submit that in terms of the Rule 7-B of the U.P. Fundamental Rules, the term Government Servant has been defined as a person appointed to a civil post or a civil service under the State Government, and serving in connection with affairs of Uttar Pradesh whose conditions of service have been or may be prescribed by the Governor under Section 241 (2) (b) of the Act.
Under Section 241 (2) (b) of the Government of India Act, 1935, the conditions of service of persons serving in a civil capacity in India could be prescribed, in the case of persons service in connection with the affairs of the Province, by rules made by the Governor or by a person authorized by the Governor to make rules for the purpose.
The Civil Service Regulations (Relating to Pension), in terms of Regulation 1 (a), are intended to define the conditions under which pension is earned by service in a Civil Department.
Therefore, the provisions of the U.P. Fundamental Rules as also the Civil Service Regulations would be applicable only to persons appointed to a civil post or a civil service under the State Government and serving in connection with the affairs of the State Government, or in other words to a Government Servant only.
In the facts of the present case the petitioners were industrial workmen with the meaning to be assigned as per the Standing Orders certified under the Act of 1946. Their conditions of service were governed by the Certified Standing Orders. The petitioners were thereof clearly not civil servant or holders of civil post under the definition of the term Government Servant contemplates the U.P. Fundamental Rules. They were not appointed to a civil post or to a civil service under the State Government so as to entitle them for pension which is earned by service in a Civil Department as required under the Civil Service Regulations.
Crux of the submission of the learned Advocate General therefore, is what once the petitioners are found to answer the description of workmen/industrial employees within the meaning of to be assigned under the Standing Orders Act, they stand excluded from the definition of a person appointed to a civil post or in civil service within the meaning of U.P. Fundamental Rules/Civil Service Regulations and therefore they are not entitled to pension.
We specifically inquired from the learned Advocate General as to under which provision of the U.P. Fundamental Rules/Civil Service Regulations/Standing Orders Act, any such exclusion in respect of the persons who are workmen are not being a person appointed to a civil post. No response could be given. It is more or less an admitted position that there is no specific provision for excluding the workmen/industrial employees in the matter of payment of pension/retiral dues, who otherwise satisfy all the conditions as contemplates by Regulation 361 of the Civil Service Regulations.
The Standing Orders Act has been enforced with an object to law down the condition of service like disciplinary action, leave, allowances etc. so as to minimize the fraction between the workmen and employer in Industrial Undertaking. Such Industrial Undertaking can be private undertaking or Government Undertaking or Public Private Undertaking. It is useful to refer to the definition of employer contained in Section 2 (d) (ii) of the Act, 1946, which reads as follows:
"2. Interpretation.
(d) "employer".......
(ii) in any industrial establishment under the control of any department of any Government in India, the authority appointed by such Government in this behalf, or where no authority is so appointed, the head of the department;"
Thus, it will be seen that a Government may own industrial undertaking and in that circumstance, a employee working in such an industrial undertaking has to be held to be in service of Government and if the appointment is substantive and his service is to be paid by the Government, he stands covered by the provisions of Regulation 361 of the Civil Service Regulations, which entitles him to pension.
For ready reference, Regulation 361 of the Civil Service Regulations reads as under:
"361. The service of an officer does not qualify for pension unless it conforms to the following three conditions:--- First-The service must be under Government.
Second-The employment must be substantive and permanent.
Third-The service must be paid by Government."
We may explain that use of the word "civil service" under Civil Service Regulations has to be read to include all nature of employment in the Government, except those which are in relation to defence service or service connected with defence.
Civil Service as defined in The New Dictionary of Cultural Literacy, Third Edition by Houghton Mifflin Company reads as under:
"The nonmilitary personnel who work for a government, applying its laws and regulations."
In our opinion the service conditions laid down as per the Certified Standing Orders, the Act, 1946 do not in any way impinge upon the right of a employee working in a Government Industrial Undertaking to be entitled to pension and other retiral dues under Regulation 361 of Civil Service Regulations. Provisions of Regulation 361 of the Civil Service Regulations are a beneficial piece of legislation and we do not find any reason for the persons who are covered by the Certified Standing Orders to be excluded from the benefits of Regulation 361 of the Civil Service Regulations, if they satisfy the other requirements of Regulation 361 of the Civil Service Regulations.
In our opinion even a workman/industrial employee of Government Industrial Undertaking has to be held to be a civil servant/holder of a civil post under the Government so as to be covered within the meaning of Regulation 361 of the Civil Service Regulations.
There is no issue with regard to other employees appointed in Factory at Churk and subsequently absorbed in the Corporation being paid pension in terms of the Government Order dated 2nd August, 2005.
We for the reasons recorded above see no reason as to why the workmen/industrial employees similarly appointed and absorbed be denied the same benefit. It is held that petitioners who answer the description of industrial employees/workmen shall also be covered by the Government Order dated 2nd August, 2005 and would be entitled to all benefits following therefrom.
In the totality of the circumstances on record we do not find any substance in the contentions raised by the learned Advocate General for the State to interfere with the judgment and order of the learned Single Judge dated 12th April, 2016.
All these appeals lack merit and are accordingly dismissed.
(R.R. Awasthi, J.) (Arun Tandon, J.)
Order Date:- 21.12.2017
Sushil/-
Court No. - 10
Case :- SPECIAL APPEAL DEFECTIVE No. - 773 of 2016
Appellant :- State Of U.P. And 4 Others
Respondent :- Gorakh Nath Pandey And 15 Others
Counsel for Appellant :- Rama Nand Pandey,S.C.
Counsel for Respondent :- Siddharth Khare
Hon'ble Arun Tandon,J.
Hon'ble Ritu Raj Awasthi,J.
Dismissed.
For orders, see our order of date passed on the separate sheets.
(R. R. Awasthi, J.) (Arun Tandon, J.)
Order Date:- 21.12.2017
Sushil/-